Terri L. Babineaux v. Douglas W. Stonicher

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

CA 22-300

TERRI L. BABINEAUX

VERSUS

DOUGLAS W. STONICHER, ET AL.

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APPEAL FROM THE
TWENTY-SEVENTH JUDICIAL DISTRICT COURT
PARISH OF ST. LANDRY, NO. 20-C-2069-A
HONORABLE GREGORY JAMES DOUCET, DISTRICT JUDGE

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GARY J. ORTEGO
JUDGE

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Court composed of Chief Judge Sylvia R. Cooks, Charles G. Fitzgerald, and Gary
J. Ortego, Judges.

AFFIRMED.

Fitzgerald, J., dissents and assigns reasons.

Kay Karre Gautreaux
Attorney at Law
405 W. Convent St.
Lafayette, LA 70501
(337) 232-7747
COUNSEL FOR PLAINTIFF/APPELLEE:
Terri L. Babineaux

Florencia Ibanez
Granger & Trant
284 E.Martin Luther King Drive
Grand Coteau, LA 70541
(337) 662-3902
COUNSEL FOR DEFENDANT/APPELLANT:
Douglas W. Stonicher
Rachel Stonicher

ORTEGO, Judge.

This case involves a dispute between two landowners regarding the nature of

a conventional right-of-passage servitude. The trial court found that the servitude

was predial.

After de novo review, we find no error in the trial court’s judgment. The

servitude is presumed to be predial, and the evidence in the record fails to rebut that

presumption.

FACTS AND PROCEDURAL HISTORY

The properties at issue in this matter were part of a single tract of land

consisting of 39.812 acres in St. Landry Parish, owned by Easton Guidry and

Philomeno Bacque Guidry, a married couple. After the couple was deceased, the

land was inherited by their four children. On July 12, 1976, the four children

partitioned the property. Patsy Ruth Guidry Begnaud (Patsy) acquired ownership of

“Tract 3,” which shared its western boundary with the eastern boundary of “Tract

2,” acquired by Druscilla Guidry Olivier (Druscilla).1 Clarance Cormier Road is the

only public road which borders either of “Tract 2” and “Tract 3.” The public road

runs east and west along the northern border of the two tracts.

On May 25, 1982, Druscilla subdivided “Tract 2” into “Tract 2B 1” and “Tract

2B 2.” Druscilla sold “Tract 2B 2” to Steve E. Hooper, Terri L. Babineaux

(Babineaux), and Ricky Lavergne. Druscilla retained “Tract 2B 1” which is located

directly to the south of “Tract 2B 2.” The subdivision and sale resulted in “Tract 2B

1” having no access to a public road.

1
We note that in the record Druscilla signed her name on certain documents
as “Drusilla” without a “c” in the spelling of her name, however, there are instances
within the documents where her name is spelled with a “c”, we will use the spelling
“Druscilla” throughout this opinion, as representing either spelling.
1

Thereafter, in March of 1985, Patsy sold a portion of “Tract 3” to Joseph

Edward Davis, Jr. and Mary Butcher Davis. The 1985 Cash Sale included language

that created a right-of-passage that states (emphasis added):

Vendor [Patsy] reserves to herself for the benefit of her sister, Druscilla
Guidry Olivier, or her assigns, a 20 foot right-of-passage along the
western boundary of the property sold herein, a distance of 937.87 feet,
all as more fully shown on the attached plat of survey.

“The attached plat of survey” referenced in the 1985 Cash Sale has a clearly

designated “20’ RIGHT OF PASSAGE” that runs along the western boundary of

“Tract 3,” the servient estate/tract, that it shares with “Tract 2B 2” and “Tract 2B 1.”

The right-of-passage created provides “Tract 2B 1,” a dominant estate/tract, with

access to Clarance Cormier Road. The right-of-passage has a notation “937.87”

indicating its length. The drawing depicting the servitude on the Plat does not place

the dash marks along the entire length of the boundary between “Tract 2” and “Tract

3.” However, the length of the shared boundary between the two tracts is in fact

937.87 feet. Both the 1985 Cash Sale and attached plat of survey were filed in the

public records of St. Landry Parish on March 18, 1985. The nature of this right-of-

passage in the 1985 Cash Sale is the sole issue in this case.

Thereafter, on January 28, 1994, Babineaux purchased “Tract 2B 1,” from

Druscilla. According to Babineaux’s testimony, she was aware of the predial right-

of-passage, she enjoyed its use without interruption for the next 15-20 years through

multiple owners of “Tract 3,” and she further testified that she would not have

purchased “Tract 2B 1” without the right-of-passage due to her plans to divide or

sell the tract.

2

On May 12, 2004, Douglas W. Stonicher and Rachael A. Stonicher (the

Stonichers) purchased 5.60 acres in St. Landry Parish consisting of the western part

of “Tract 3” that borders “Tract 2B 1” and “Tract 2B 2.” Eventually, a disagreement

arose between Babineaux and the Stonichers regarding the right-of-passage created

in the 1985 Cash Sale.

On June 4, 2020, Babineaux filed a petition for mandatory injunction,

prohibitory injunction, and damages against the Stonichers for allegedly building

obstructions on the right-of-passage preventing her usage thereof. After various

filings, a trial was held resulting in the trial court finding the right-of-passage recited

in the 1985 Act of Sale is a predial servitude. The Stonichers appeal, assigning three

errors.

ASSIGNMENTS OF ERROR

1. The trial [c]ourt erred by failing to consider the language
contained in the 1985 Cash Sale which created the [right-of-
passage] in determining the servitude to be predial in nature.

2. The trial court erred in applying Tate v. South Central Bell
Telephone Co., [386 So.2d 139 (La.App. 3 Cir.1980)] to the issue
of determining the nature of a right-of-passage as the Tate [c]ourt
addressed only whether plats of survey can establish servitudes
generally. The nature of the right-of-passage as predial or
personal was not at issue in that case nor was it considered by the
court.

3. The [t]rial [c]ourt erred by delving into the intent of the parties
to this 1985 Cash Sale because the parties seeking to enforce or
denounce the existence of a predial servitude were not parties to
the establishing act under the holding in Brunson v. Crown
Brake, LLC,[18-994 (La.App. 3 Cir. 6/19/19), 275 So.3d 432,
writ denied, 19-1184 (La. 10/15/19), 280 So.3d 613].

3

LAW AND DISCUSSION

I. Standard of Review

An appellate court reviews the factual findings of a trial court under the

manifest error-clearly wrong standard of review. Rosell v. ESCO, 549 So.2d 840

(La.1989). The trial court’s legal conclusions on questions of law, however, are

reviewed de novo. Brunson v. Crown Brake, LLC, 18-994 (La.App. 3 Cir. 6/19/19),

275 So.3d 432, writ denied, 19-1184 (La. 10/15/19), 280 So.3d 613.

The nature of a servitude created in a contract and whether it exists on

immovable property are issues of law requiring de novo review. See Platt v. Rimmer,

16-223 (La.App. 3 Cir. 10/12/16), 203 So.3d 553. Questions of law are reviewed by

this court using the proper analysis applicable to the question of law previously

before the trial court to determine whether the trial court was legally correct in its

findings. Litel Explorations, LLC v. Aegis Dev. Co., LLC, 21-741 (La.App. 3 Cir.

4/6/22), 337 So.3d 940.

II. Determining the Nature of the 1985 Cash Sale Servitude

The Stonichers, in their three assignments of error, assert erroneous analysis

by the trial court in reaching its judgment. Given that the standard of review

applicable to this case is de novo, we review the case without reliance on the trial

court’s findings. Rather, we must use the proper analysis to determine whether the

trial court was legally correct in its findings.

“There are two kinds of servitudes: personal servitudes and predial

servitudes.” La.Civ.Code art. 533. “A personal servitude is a charge on a thing for

the benefit of a person.” La.Civ.Code art. 534. “The personal servitude of right of

use confers in favor of a person a specified use of an estate less than full enjoyment.”

La.Civ.Code art. 639.
4

Contrarily, “[a] predial servitude is a charge on a servient estate for the benefit

of a dominant estate.” La.Civ.Code art. 646. “Predial servitudes may be natural,

legal, and voluntary or conventional. Natural servitudes arise from the natural

situation of estates; legal servitudes are imposed by law; and voluntary or

conventional servitudes are established by juridical act, prescription, or destination

of the owner.” La.Code Civ.P. art. 654. “The servitude of passage is the right for the

benefit of the dominant estate whereby persons, animals, utilities, or vehicles are

permitted to pass through the servient estate.” La.Code Civ.P. art. 705.

Here, we do not have an express declaration that the right-of-passage servitude

granted to Druscilla Guidry Olivier, or her assigns, in the 1985 Cash Sale is predial

or personal in nature. Therefore, we must determine whether the right-of-passage

created by Patsy is a personal or predial servitude.

When the instrument does not so designate the kind of right, the
resolution of the question becomes a matter of contractual
interpretation and is governed by both the general rules of construction
of juridical acts and the rules of construction applicable specifically to
instruments purporting to create servitudes. Under these rules of
interpretation the intention of the parties must govern.

Deshotels v. Fruge, 364 So.2d 258, 260 (La.App. 3 Cir.1978).

The parties do not dispute that the instrument creating the right-of-passage,

the 1985 Cash Sale, is a contract. “Interpretation of a contract is the determination

of the common intent of the parties.” La.Civ.Code art. 2045. “When the words of a

contract are clear and explicit and lead to no absurd consequences, no further

interpretation may be made in search of the parties’ intent.” La.Civ.Code art. 2046.

5

The language in the 1985 Cash Sale creating the servitude, of passage is as

follows:

Vendor [Patsy Rush Guidry Begnaud] reserves to herself for the benefit
of her sister, Druscilla Guidry Olivier, or her assigns, a 20 foot right-
of-passage along the western boundary of the property sold herein, a
distance of 937.87 feet, all as more fully shown on the attached plat of
survey.

“When the act does not declare expressly that the right granted is for the

benefit of an estate or for the benefit of a particular person, the nature of the right is

determined in accordance with the following rules.” La.Civ.Code art. 732. “When

the right granted be of a nature to confer an advantage on an estate, it is presumed to

be a predial servitude.” La.Civ.Code art. 733.

Here, the nature of the right-of-passage granted confers a significant

advantage to the estate at issue, “Tract 2B 1.” In 1985 when the cash sale was

confected, without the right-of-passage created in the Act of Sale, “Tract 2B 1”

would have no access to a public road, and, thus, remain landlocked. With the sale

of “Tract 3” Druscilla would lose the ability to access to “Tract 2B-1”, which her

sister historically allowed. Thus, we begin our analysis with the presumption that

the right-of-passage created in the 1985 Cash Sale is predial.

We reject the Stonichers’ argument that the right-of-passage is presumed

personal because predial servitudes, in general, are disfavored per La.Civ.Code art.

730, which states, “[d]oubt as to the existence, extent, or manner of exercise of a

predial servitude shall be resolved in favor of the servient estate.” We find this

interpretation lacks merit.

Louisiana Civil Code Article 730 codifies a line of jurisprudence as far back

as Parish v. Municipality No. 2, 8 La.Ann. 145, 147 (1853), when the Louisiana

Supreme Court addressed servitudes, in general. In that case, the court stated,
6

“[s]ervitudes are restraints on the free disposal and use of property, and are not, on

that account, entitled to be viewed with favor by the law.”

But, in Rockholt v. Keaty, 256 La. 629, 237 So.2d 663 (1970), the Louisiana

Supreme Court noted the benefit to the public of keeping valuable property in

commerce when specifically discussing a right-of-passage predial servitude for the

benefit of a dominate estate to have access to a public road. This public benefit is

codified in La.Civ.Code art. 689, which states, “[t]he owner of an estate that has no

access to a public road or utility may claim a right of passage over neighboring

property to the nearest public road or utility.”

“It is a fundamental rule of statutory construction that when two statutes deal

with the same subject matter, the statute specifically directed to the matter at issue

must prevail as an exception to the more general statute.” Fontenot v. Reddell

Vidrine Water Dist., 02-439, p. 20 (La. 1/14/03), 836 So.2d 14, 28. Here, Druscilla

Guidry Olivier is deceased. If we were to find that the servitude contracted in the

1985 Cash Sale was personal in nature, “Tract 2B 1” becomes landlocked and

removed from public commerce. Accordingly, we find the Stonichers’ interpretation

of La.Civ.Code art. 730 for the proposition that the servitude should be presumed

personal is not supported by the jurisprudence.

Next, the Stonichers cite the language of La.Civ.Code art. 734, and point out

that the 1985 Cash Sale’s failure to include “heirs” is evidence that the servitude in

question cannot be considered predial. We disagree.

“When the right granted is merely for the convenience of a person, it is not

considered to be a predial servitude, unless it is acquired by a person as owner of an

estate for himself, his heirs and assigns.” La.Civ.Code. art. 734. Here, the language

of the 1985 Cash Sale does not have the specific language included in La.Civ.Code
7

Art. 734. The language of the 1985 Cash Sale is that the right-of-passage is for

Druscilla Guidry Olivier, the owner of the estate, followed with “or her assigns”

rather than stating that the right-of-passage is for Druscilla or her “heirs and assigns.”

The omittance of “heirs” in the right-of-passage created in the 1985 Cash Sale

does not necessitate a finding that the servitude cannot be considered predial. The

words of a contract are to be understood “in the common and usual signification.”

La.Civ.Code art. 1946. “Heir” is a general term which is commonly understood to

encompass those who inherit by operation of law. An heir is an intestate successor.

La.Civ.Code art. 876. “Assigns,” per La.Civ.Code art. 3506 (5), “means those to

whom rights have been transmitted by particular title; such as sale, donation, legacy,

transfer or cession.” Therefore, an heir is more restrictive as to who can be classified

as such in comparison to an assign. When conferring a right to exercise a servitude,

heirs are limited to certain individuals who inherit by operation of law, while an

assign can be any individual who can be transferred the original owner’s right to

exercise a servitude. Thus, omitting “heirs” while including “assigns,” does not

necessitate a finding that a servitude is not predial. Rather, including the phrase “or

her assigns” indicates that the right-of-passage was intended to be transferable, thus

making it a predial servitude.

In applying basic contract interpretation of the 1985 Cash Sale, this court finds

that parties could not have had the common intent to create a personal servitude. “A

personal servitude is a charge on a thing for the benefit of a person.” La.Civ.Code

art. 534 (emphasis added). A right-of-passage can be a personal servitude if it

“confers in favor of a person a specified use of an estate less than full enjoyment.”

La.Civ.Code art. 639 (emphasis added). The language of La.Civ.Code art. 534 and

8

La.Civ.Code art. 639, “a person,” indicates that a personal servitude confers a right

to a singular individual. While the language of the instrument references Druscilla

Guidry Olivier, it more importantly provides that the right can be exercised by her

assigns. The inclusion of the language “or her assigns” in the 1985 Cash Sale

indicates that the parties contemplated and intended for Druscilla to eventually

assign the right-of-passage to another. Thus, we find that language of the 1985 Cash

Sale does not limit the right-of-passage to Druscilla Guidry Olivier, personally.

We find the operative language in the 1985 Act of Sale is the inclusion of the

words “or her assigns” because the inclusion of those words, rather than only

Druscilla’s name, demonstrates the parties’ intent to create a servitude providing a

perpetual advantage to the adjoining tract of land owned at the time by Druscilla,

extending far into the future to all assigns of the property. The word “assigns” is a

broader term than “heirs”, and includes Druscilla’s heirs, purchasers of the property,

and anyone to whom she might donate the property or transfer title to the property.

As the court noted in Whitney Nat. Bank of New Orleans v. Poydras Ctr. Assocs.,

487 So.2d 120, 123, (La.App. 4 Cir., 3/12/86) writ denied, 492 So.2d 1221 (La.

1986) (emphasis added). “It matters not that the language of the Act was

couched in personal terms, for the right created was a real advantage to the

dominant estate. . .”

An additional indicator of the parties’ intent to create a predial servitude to

advantage the land owned by Druscilla is the fact that Druscilla participated in the

Act of Sale as a signatory to the sale making the representation in the Act of Sale

that in exchange for the servitude being created by Patsy in the sale, Druscilla agreed

to only divide the Tract into two parcels, and further agreed to restrict the use to a

single family dwelling per Tract. The inclusion of “assigns” in the document
9

demonstrates that Patsy and Druscilla contemplated the long-term effect of dividing

and selling Druscilla’s land with the predial servitude in place to avoid ever

landlocking the more remote piece of Druscilla’s Tract. The jurisprudence has also

held that “The benefit need not exist at the time the servitude is created; a

possible convenience or a future advantage suffices to support a servitude.” La.

C.C. art. 647. Brehm, 314 So.3d at 62.

In Bernard v. Broussard, 538 So.2d 1093, 1094–95 (La.App. 3 Cir. 1989),

this court explained the significant import of the Act of Sale referencing the Plat of

Survey depicting the servitude, as this court had previously held in Tate:

It is well established that where one subdivides property by plat of
survey which designates a right-of-way or servitude of passage and
thereafter sells one or more tracts of land by reference to said survey, a
servitude of passage is created thereby, regardless of whether or not the
instrument in question specifically describes or makes reference to the
servitude.Tate v. South Cent. Bell Tel. Co., 386 So.2d 139 (La.App. 3
Cir.1980); Triangle Development, Inc. v. Burns, 469 So.2d 29 (La.App.
1 Cir.1985). Such has been the holding of the courts of this State in
cases involving the transfer of both urban and rural
property. Iseringhausen v. Larcade, 147 La. 515, 85 So. 224 (1920).

In Bernard v. Somme, 501 So.2d 893 (La.App. 5 Cir.1987),
several heirs partitioned a tract of land, dividing same into eight
separate parcels. Although the partition made no reference to a
servitude of passage, the plat of survey referenced in said partition
delineated a 10–foot strip traversing the southern boundary line of the
property partitioned, designating same “For Road.” In finding that a
servitude of passage was created, the court stated, at page 895, the
following:

Although the Act of Partition did not expressly establish a
servitude of passage along the southern boundary of Lot
153, the surveyor’s plat referenced in the property
descriptions shows that a ten-foot strip traversing the
length of the southern boundary of Lot 153 was designated
‘For Road’. A portion of this area was shelled at the time
the partition was executed. When there is such a
discrepancy between the document transferring title and
the surveyor’s plat referenced in the property description,
the plat, which forms part of the description as if it were
actually copied therein, controls.
10

Likewise, in Brehm the First Circuit explained the creation of a right of

passage by reference to a Plat of Survey depicting the servitude even where the

instrument was silent as to the creation of the servitude therein:

Predial servitudes may be natural, legal, and voluntary or
conventional. Natural servitudes arise from the natural situation of
estates; legal servitudes are imposed by law; and voluntary or
conventional servitudes are established by juridical act, prescription,
or destination of the owner. La. C.C. art. 654. Predial servitudes may
be established by an owner on his estate or acquired for its benefit. La.
C.C. art. 697. The use and extent of such servitudes are regulated by the
title by which they are created, and, in the absence of such regulation,
by the rules set forth in La. C.C. arts. 698 through 774. See La. C.C. art.
697. A right of passage is an example of a predial servitude. See La.
C.C. art. 699. The servitude of passage is the right for the benefit of the
dominant estate whereby persons, animals, or vehicles are permitted to
pass through the servient estate. Unless the title provides otherwise, the
extent of the right and the mode of its exercise shall be suitable for the
kind of traffic necessary for the reasonable use of the dominant estate.
La. C.C. art. 705. The establishment of a predial servitude by title is an
alienation of a part of the property to which the laws governing
alienation of immovables apply. La. C.C. art. 708. Predial servitudes
are established by all acts by which immovables may be transferred.
La. C.C. art. 722. Doubt as to the existence, extent, or manner of
exercise of a predial servitude shall be resolved in favor of the servient
estate. La. C.C. art. 730.

A servitude of passage is created when one subdivides property
by plat of survey that designates a right-of-way or servitude of passage
and thereafter sells one or more tracts of land by reference to said
survey, regardless of whether or not the instrument in question
specifically describes or makes reference to the
servitude. Bernard v. Broussard, 538 So.2d 1093, 1094 (La. App. 3 Ci
r.), writ denied, 542 So.2d 1381 (La. 1989). Where an act of sale is
silent as to an easement, but the survey plat referred to in the property
description, which was attached to a previous act of sale that was
recorded in the conveyance records, indicated that there was an
easement, a servitude is created. Templeton v. Jarreau, 2018-0240 (La.
App. 1 Cir. 9/24/18), 259 So. 3d 356, 362.

Brehm v. Amacker, 314 So.3d at 62–63.

These cases support the conclusion that the servitude created in the 1985 Act

of Sale is a predial servitude created for the benefit of the Tract owned by Druscilla

as the dominant estate so that this land would never become land locked in the future,
11

if and when Druscilla subdivided her land and conveyed the land to her assigns, and

in turn, they continued to convey the land to successive owners. Additionally, the

fact that every successive transfer of title to Tract 3 recited the Plat of Survey from

1985, that depicts the servitude of passage, is indicative that this servitude was not

merely for the personal benefit of Druscilla.

Accordingly, we affirm the trial court’s judgment.

CONCLUSION

Douglas W. Stonicher and Rachal A. Stonicher raise three assignments of

error. Each assignment asserts erroneous analysis by the trial court, namely: (1)

failure to consider the language contained in the 1985 Cash Sale; (2) misapplication

of Tate v. South Central Bell Telephone Co., 386 So.2d 139; and (3) seeking the

intent of the parties to the 1985 Cash Sale in establishing the right-of-passage at

issue.

After de novo review of the question of law presented, we find that the right-

of-passage in question is a predial servitude in favor of “Tract 2B 1” over the western

border of “Tract 3”, as established in the 1985 Cash Sale. The predial nature of the

servitude is presumed. No evidence to the contrary is present in the record.

Accordingly, we find no error by the trial court in concluding the right-of-

passage is a predial servitude. The judgment of the trial court is affirmed in all

respects, and we assess all costs of this appeal to Douglas W. Stonicher and Rachal

A. Stonicher.

AFFIRMED.

12

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

22-300

TERRI L. BABINEAUX

VERSUS

DOUGLAS W. STONICHER, ET AL.

FITZGERALD, Judge, dissenting with reasons.
I respectfully disagree that an affirmation is warranted in this case. In my

view, the 1985 Cash Sale created a personal servitude not a predial servitude.

After all, the 1985 Cash Sale (including the attached plat) does not indicate

that Druscilla Guidry Olivier owns Tract 2B 1. There is no mention of a dominate

estate. And there is nothing indicating that the “right of passage” was created for

the benefit of Tract 2B 1 as the dominant estate.